How Can I Avoid Being Sued for Defamation?

We receive a lot of calls from people who ask us: "If I say this, can they sue me?" No matter the statement, our answer is always yes. Unfortunately, there is no one sitting at the courthouse reading incoming lawsuits to see if they're meritorious before allowing them to be filed. All lawsuits get filed, even the frivolous ones.

What Happens If I Ignore a Lawsuit?
Please don’t ignore a lawsuit. If you are served with a lawsuit and choose to ignore it, the person bringing the lawsuit against you may seek and receive a default judgment against you once the twenty or thirty day period provided to answer has passed. A default judgment is granted when a plaintiff shows that the defendant was properly served with but failed to respond to the lawsuit against them in the time allotted. The result of a judge granting a default judgment is that the case is decided in the plaintiff's favor.  

If a default judgment has been granted against you in a case, you are not without recourse. To have a default judgment set aside, a defendant must file a motion to vacate the default judgment. To do so based on excusable default, you must make the motion within one year of service of the judgment or within one year of the moving party's entry of the judgment. New York will generally grant a defendant's motion to vacate a default judgment if the defendant shows a good excuse for not responding or lack of jurisdiction over the defendant, which usually means the defendant was not properly served. You will also need to show that your claims or defenses have legal merit. In New York, courts have a preference of resolving cases on the merits rather than by the default of a party.

I'm Being Sued for Defamation, What Do I Do?
First, don't panic. There are many available privileges and defenses in defamation cases that may protect you. You may even be able to work out a settlement with the person suing you before you ever answer the lawsuit. But once you have been served with a defamation lawsuit, you should keep a couple things in mind.

1. Preserve Evidence: Spoliation is the destruction of evidence (or failure to preserve it) which might be of use in pending or reasonably foreseeable litigation. If you delete or otherwise destroy evidence that could be useful in the case against you, you have a duty to preserve it.  But just because you’re aware of and respect this rule, doesn’t mean the other side will.  Make sure you save in a safe place all your conversations with the person suing you and anything else that supports what you wrote about them.  Check out our page on evidence preservation or listen to this YouTube video to learn more about best practices for saving evidence.

2. Bite Your Tongue: Now that you’re involved in a defamation lawsuit, there’s a good chance someone is monitoring the statements you are making on social media.  And while it’s human nature to double down on statements you believe to be true, we always advise against feeding the plaintiff more ammunition to include in an amended complaint against you.  Make sure your social media accounts are private.

3. Talk to a Lawyer, Not the World: Instead of posting about your situation on social media, start calling lawyers who focus on defamation lawsuits.  Many lawyers offer free consultations.  Some lawyers may be willing to take your case on contingency.

4. Notify Your Insurance Carrier:  Your homeowners or renters insurance may provide coverage for claims of defamation.

5. Keep an Eye on Your Calendar:  The Summons – a document which you received when you were served – should tell you when you need to respond.  If you were personally served with the papers, you have 20 days to respond; if you were not personally served within the State of New York, you have 30 days to respond.  Most attorneys will provide you additional time to respond if you request it.  But don’t let the lawsuit languish, otherwise the plaintiff may obtain a default judgment against you.

Defamation Defenses: Truth

Just like they say in the movies, truth is an absolute defense to defamation claims.  So is substantial truth.  It is necessary to any defamation claim that a plaintiff assert and establish that the statement made about them is false.  If a defendant includes the truth or substantial truth of his statement as an affirmative defense, he must also plead and establish the truth of his statement.

If you are sued for defamation in New York and the statement you made is true, it is important to raise the affirmative defense of truth in your answer to the lawsuit. 

Defamation Defenses: Opinion

Since defamation must be false to be actionable and only facts are capable of being proven true or false, pure opinion cannot be the subject of a defamation action.  A statement which is accompanied by a set of facts upon which the statement is based remains a nonactionable opinion.  An opinion that suggests it is based on facts not disclosed to the reader is considered a “mixed opinion” and can be the subject of a defamation claim. 

If you are sued for defamation in New York and the statement you made is pure opinion, it is important to raise the affirmative defense of opinion in your answer to the lawsuit.

Defamation Defenses: Statute of Limitations

The Statute of Limitations for defamation in the State of New York is one year.  That means that a person who has been defamed has one year to bring a lawsuit against the person defaming them. 

If you are sued for defamation in New York and you made the statement more than one year ago, it is important to raise the statute of limitations as an affirmative defense.

Defamation Defenses: Privilege

There are two types of privilege in defamation lawsuits: absolute privilege and qualified privilege.  Statements that are absolutely privileged cannot be the subject of a defamation lawsuit.  Statements made in judicial proceedings, legislative proceedings, or by public officials when carrying out their responsibilities are protected by absolute privilege. 

Qualified privilege is a bit more complicated.  Also known as a common interest privilege, the privilege applies where the speaker has a moral, legal, or ethical duty to make a statement to a specific audience who has a common interest in learning the information contained in the statement.  Statements that are knowingly false when communicated – statements made with actual malice – cannot be protected by qualified privilege. 

Defamation Defenses: Anti-SLAPP

On November 10, 2020, the New York State Legislature amended the state’s Anti-SLAPP statute and created a new Civil Rights Law 76-a. The amended statute now requires plaintiffs to show that a defamatory statement was “made with knowledge of its falsity or with reckless disregard of whether it was false” when such a statement was made “in a place open to the public or a public forum” and concerning “any subject other than a purely private matter.” That means that most online statements now fall under the rule that the speaker must have made the statement knowing it was false or with reckless disregard for whether it was false.

Including Anti-SLAPP laws in your affirmative defenses is important because it allows for you to recoup your attorney fees once it is determined that the plaintiff brought a lawsuit “involving public petition and participation” that was “commenced or continued without a substantial basis in fact and law.”

Having a defense to a defamation lawsuit does not mean the lawsuit goes away.  You still need to appear and defend yourself in the lawsuit.  Your lawyer will advise you on the strategy he or she thinks is best to defend the lawsuit.  One strategy is to file an answer.  An answer goes through the complaint against you and, for each paragraph, admits, denies, or denies knowledge or information sufficient to form a belief as to the truth of the allegations.  An answer should also include your affirmative defenses – the facts or legal arguments you intend to raise to beat plaintiff’s claim.  Finally, if you have any counterclaims against plaintiff – meaning, you have grounds for a lawsuit against them, too – an answer is the best time to raise them.

Another option is to file a pre-answer motion to dismiss.  As the name applies, a pre-answer motion to dismiss is filed before you file an answer.  Some of the most common reasons for filing a motion to dismiss are: 1) if you possess evidence which defeats the plaintiff’s claim, 2) if the court does not have jurisdiction over the subject matter, 3) if the court does not have jurisdiction over you, or 4) if the complaint fails to state a cause of action.  A full list of reasons to file a motion to dismiss can be found in CPLR 3211.